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In the last few years we have had an opportunity to review a number of divorce decrees, temporary and final custody orders. The language is different all the time. Since these orders will dramatically effect your child’s relationship with you it is very important that you and/or your attorney include very specific and detailed language regarding what you want. In the following few pages you will read what other parents have included in some of their orders. The following custody and visitation clauses cannot cover every possible contingency. Agreements and orders need to be tailored to the circumstances of each case. These sample clauses can be regarded as a detailed checklist of issues to be considered and then adapted to meet the needs of your individual case. Husband and Wife have ___ children of the marriage. The children's names and birth dates are:_________. [Editor's note: A provision may be added to list children of prior marriages. Social Security numbers of children also might be listed.] Jurisdiction Initial jurisdiction [Editor's note: The court should articulate the basis for its exercise of custody jurisdiction directly on the face of every child custody order. This simple step will facilitate enforcement of the custody order and reduce the likelihood of it being modified improperly by a sister state.] "Home state" jurisdiction (the preferred basis for making an initial custody determination) This court has subject matter jurisdiction to determine custody in accordance with the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. Section 1738A(c)(2)(A), and the Uniform Child Custody Jurisdiction Act (UCCJA), Section 3(a)(1) [or cite to state version of UCCJA]. The court finds that ____ [name of state] is the "home state" within the meaning of UCCJA Section 2(5) and PKPA, 28 U.S.C. 1738A(b)(4). [The court should set forth jurisdictional facts that support the conclusion of law, including the length of time the child has resided in the state.] OR "Significant connection/substantial evidence" jurisdiction when there is no "home state" This court has subject matter jurisdiction to determine custody consistently with the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. Section 1738A(c)(2)(B), and in accordance with the Uniform Child Custody Jurisdiction Act (UCCJA), Section 3(a)(2), the court having found that no other state would have jurisdiction as the child's "home state" within the meaning of UCCJA Section 2(5) and PKPA, 28 U.S.C. Section 1738A(b)(4). [Editor's note: The court should set forth jurisdictional facts that support the conclusions of law, including the length of time the child has resided in the state and availability of evidence in the state.] OR Home state declines to exercise jurisdiction The court finds that ______ is the home state of the child and, as such, has jurisdiction to make an initial determination of custody. However, the court further finds, pursuant to Uniform Child Custody Jurisdiction Act (UCCJA) Section 7 [Editor's note: Citation also may be added to state's version of UCCJA.], that ____ [the home state] is not a convenient forum. The court finds that _____ [state] is a more appropriate forum to determine custody. The state of ____ is a more convenient jurisdiction because ______ [specify reasons, including the connection of the child and the parties to the state and the availability of evidence in the state]. [Editor's note: If a court declines to exercise jurisdiction pursuant to UCCJA Section 8 because of a party's misconduct, this paragraph could be adapted to provide for that ruling.] Modification jurisdiction Exclusive continuing modification jurisdiction [Editor's note: The PKPA provides for exclusive continuing modification jurisdiction in a state as long as: (1) the state exercised jurisdiction consistently with the PKPA when it made its initial custody determination; (2) the state continues to have a basis for jurisdiction under its own law; and (3) the state remains the residence of the child or any contestant. Practically, this means the state can exercise exclusive continuing modification jurisdiction based on "significant connection/substantial evidence" jurisdiction, even if the child has moved and established a new home state elsewhere as long as a contestant (usually the noncustodial parent) has remained in the state. By stating the following language in the custody order, the judge not only informs the parties, but also sends a message to any court that is later asked to modify the decree of the judge's intention to exercise continuing jurisdiction. This should prompt any judge in another state who is asked to modify the decree to communicate with the issuing court to find out whether it still has continuing jurisdiction and intends to exercise it. The original court is free to decline jurisdiction, based on considerations of inconvenient forum and "unclean hands."] This state shall retain exclusive continuing modification jurisdiction over custody as long as: (1) this state remains the residence of the child or of any contestant; and (2) the child and at least one contestant have a significant connection with the state, and there is available in the state substantial evidence concerning the child. OR State with exclusive continuing modification jurisdiction declines to exercise jurisdiction [The] this court finds that it has exclusive continuing modification jurisdiction, consistent with the Parental Kidnapping Prevention Act, 28 U.S.C. Section 1738A(d), to decide the issue of custody, because this court issued the last custody order in this case consistently with the PKPA, ______ [the parent(s), child, or both] continue to reside in this state and there is a basis under state law for the exercise of jurisdiction. However, the court further finds, pursuant to Uniform Child Custody Jurisdiction Act (UCCJA) Section 7 [Editor's note: Citation also may be added to state's version of UCCJA], that this state is no longer a convenient forum. The court finds that ____ state is a more appropriate forum to determine custody. The state of ____ is a more convenient forum because ______ [specify reasons, including the connection of the child and the parties to the state and the availability of evidence in the state]. [Editor's note: If a court declines to exercise jurisdiction pursuant to UCCJA Section 8 because of a party's misconduct, this paragraph could be adapted to provide for that ruling.] Preventing abductions [Editor's note: Assuming the court has jurisdiction to make a custody determination consistent with the UCCJA and PKPA, specific provisions should be included in the order to protect against parental kidnapping.] Penalties for violating the order [Editor's note: At the bottom of the first page of the order, state prominently, in uppercase bold letters, the penalties for violating the order.] VIOLATION OF THIS ORDER MAY SUBJECT THE PARTY IN VIOLATION TO CIVIL AND/OR CRIMINAL PENALTIES. When international flight is a risk Prohibit removal The _____ [mother] [father] is prohibited from removing the child from this country for any reason unless advance written consent is secured from _____ [father] [mother] or this court. [Editor's note: Such provision is sufficient to prevent issuance of an American passport for the child.] Surrender passport Prior to exercising visitation with the child, ______ [mother] [father] shall surrender the child's passport(s) to _____ [mother, father, attorney, court, clerk of court, etc.]. Joint or shared custody Decision making Shared parental responsibility--generally Each of the parties recognizes the deep love, devotion, and dedication of the other to the minor children. Each of the parties also feels that the other party is fully capable and competent to raise the minor children and to make a home for the children in which they can grow up in a wholesome, loving, and harmonious atmosphere. Each recognizes that the other has a right to and shall fully participate with the other and with the children in all important matters pertaining to the children's health, welfare, education, and upbringing. Joint decision making The parties agree to share parental responsibility of the minor children, including decision making regarding education, medical care, dental care, summer camp, ages for dating and driving, and other significant matters affecting the children. [Editor's note: Perhaps specify particular additional issues of importance to the parties.] The parties also will seek to agree insofar as possible regarding the children's religious training, but the parties recognize that each party has the right to expose the children to his or her respective religious beliefs. OR Agreement to consult regarding decisions affecting the children The parties agree to consult with each other regarding major decisions affecting the children [particular issues might be specified, including major expenditures on behalf of the children]. The requirement of consultation means that _____ [generally the parent without primary custody] shall have meaningful input into decisions affecting the children before final decisions are made. In the event that an agreement cannot be reached, _______ [normally the parent with primary custody] shall have final authority on the decision [unless a court determines otherwise]. Emergency decisions It is understood that some decisions must be made on an emergency or urgent basis and in such an event, each of the parties acknowledges full confidence in the other's ability to make a unilateral decision for the children's welfare, which otherwise would be a joint decision of the parties. When a unilateral decision on a significant matter is made, the party making that decision shall promptly notify the other party. Time-sharing arrangements Alternating weekends The children shall be with ___________ from after school on Mondays until after school on Wednesdays; the children shall be with _________ after school on Wednesdays until after school on Fridays. [Editor's note: You may also specify approximate equivalent times during portions of the year when school is not in session.] The children shall spend alternate weekends with each parent. Weekends shall commence after school (or equivalent time) on Friday and end at the beginning of school on Monday. [Editor's note: Alternatively, one parent might bring the children to the other parent's home on Sunday evening.] OR Split weeks The children shall be with ____________ from Wednesday after school until ____ [5 p.m.] Saturday; the children shall be with __________ from ____ [5 p.m.] Saturday until the beginning of school on Wednesday. When school is not in session, approximately equivalent times or other mutually agreeable times may be used. OR Alternate weeks The children shall be with each parent during alternate weeks. The children shall move between the parents' homes at approximately ____ [6:30 p.m.] on Sundays. OR Alternate months The children shall be with each parent during alternate months. The children shall move between the father's and mother's homes at approximately ____ [6:30 p.m.] on the first Sunday of the month. This arrangement shall begin on ____ when the children shall be with ____ for one month. OR Alternate four-month periods The children shall live with each parent during alternate four-month periods, commencing _________, when the children shall begin a four-month period with ___________. When the children have their primary residence with one parent, the other parent shall be with the children on alternate weekends [or one weekend per month] from ____ [6 p.m.] on Friday until ____ [7 p.m.] on Sunday. The children shall spend major holidays with whichever parent they are spending the four-month period. Visitation/time with child [Editor's note: The terms "custody" and "visitation," which are used throughout this section, may have negative connotations for some people. In drafting agreements and orders, you can avoid the terms "custody" and "visitation" by referring instead to "parenting time" or to specific times during which the children will be with each parent. General provisions __________ shall have custody and control of the minor children. ________ shall have reasonable [and liberal] visitation at times agreed to by the parties. Moderate visitation __________ shall have custody of the minor child[ren] of the parties, and _________ shall have reasonable rights of visitation. Such visitation shall include: (a) Alternate weekends from ____ a.m. Saturday to ____ p.m. Sunday. (b) One week during the children's winter vacation. (c) Father's Day [or Mother's Day]. (d) Two weeks during the children's summer vacation. Average visitation _______ shall have custody of the minor child[ren] of the parties, and __________ shall have reasonable rights of visitation. Such visitation shall include: (a) Alternate weekends from ___ p.m. Friday to ___ p.m. Sunday. (b) Half of the children's winter vacation. (c) Half of the children's spring vacation. (d) Alternate Thanksgivings, Memorial Days, and Independence Days. (e) Father's Day [or Mother's Day]. (f) Thirty days during the children's summer vacation. Liberal visitation ________ shall have custody of the minor child[ren] of the parties, and ________ shall have liberal rights of visitation. Such visitation shall include: (a) Alternate weekends, from after school Friday to ___ p.m. Sunday. (b) One weekday visit per week, from after the children's school [or some later fixed time]until ____ p.m. (c) Half of the children's winter vacation. (d) Half of the children's spring vacation. (e) Alternate legal holidays. (f) Father's Day [Mother's Day]. (g) Half of the children's summer vacation [or seven weeks during the children's summer vacation]. Greater specificity [Editor's note: If greater specificity is desired in the visitation schedule, provisions similar to the following might be included.] ___________ shall have custody of the minor child[ren] of the parties, and __________ shall have reasonable rights of visitation, which shall include: (a) The first and third weekends of every month from _____ p.m. Friday to ____ p.m. Sunday. A weekend shall be considered to be the first or third weekend of the month if the Friday of the weekend is the first or third Friday of the month. [Editor's note: A visitation schedule of first and third weekends of the month will result in the noncustodial parent receiving slightly less than half of the weekends. If a fifth weekend of the month were included (when it occurs), the noncustodial parent would receive approximately three or four additional weekends per year, which would give him or her slightly more than half of all weekends.] (b) Wednesday of every week from _____ p.m. until _____ p.m. (c) One week of the children's winter vacation; provided, however, that the one-week visitation shall include Christmas Day in the odd-numbered years and December 24 in the even-numbered years from ___ [10 a.m.] to ___ [10 p.m.]. The custodial parent shall have the children on Christmas Day in the even-numbered years and on December 24 in the odd-numbered years. If possible, the vacation schedule should be divided equally so that the children spend the last half of vacation with the parent they are spending Christmas with that year, and the first half of vacation with the other parent. The parent with whom the children spend Christmas Day shall also have the children on New Year's Eve and New Year's Day. [Editor's note: Non-Christian parents could make similar provisions for alternating holidays.] (d) The first four days [or the first half] of the children's spring vacation in odd-numbered years, and the last four days [or second half] of the children's spring vacation in even-numbered years. (e) In odd-numbered years, the following holidays: Martin Luther King Jr.'s birthday; Memorial Day; Labor Day; and Veteran's Day. In even-numbered years, the following holidays: President's Day; Independence Day; Columbus Day; and Thanksgiving weekend from ___ [6 p.m.] on Wednesday to ___ [7 p.m.] on Sunday. Visitation on these holidays will begin at ___ [9 a.m.] and end at ___ [7 p.m.], except for Thanksgiving weekend and those holidays that fall on a Monday following a weekend of normal visitation, in which case visitation shall be continuous from the beginning of the weekend until ___ [7 p.m.] on Monday. In odd-numbered years, the custodial parent shall have the children with him [or her] for Thanksgiving weekend, notwithstanding the normal weekend visitation schedule. If Thanksgiving weekend falls on a weekend of normal visitation, another weekend near Thanksgiving, during which the children normally would be with the custodial parent, shall be substituted as a weekend of visitation. (f) Father's Day [or Mother's Day] from ___ [9 a.m.] until ___ [7 p.m.], regardless of normal weekend visitation schedule. The children shall be with the custodial parent from ___ [9 a.m.] through _______ [the end of the day] on Mother's Day [or Father's Day], regardless of the normal weekend visitation schedule. (g) Thirty days in the summer. When a period of summer visitation is ___ [15] or more continuous days, and the noncustodial parent is not traveling more than 40 miles away from his [or her] home with the children, the custodial parent may be with the children during the same times that the noncustodial parent could be with the children under the normal visitation schedule. (h) Notwithstanding the foregoing visitation schedule pertaining to the noncustodial parent's weekend and week night visitation, the custodial parent may take or send the children out of town for periods totaling up to four weeks per calendar year, during which time the noncustodial parent shall not have visitation and no make-up periods of visitation need be provided. Out-of-state noncustodial parent [Editor's note: Visitation for an out-of-state noncustodial parent could be the same as one of the preceding visitation schedules, minus the weekend, week night, and one-day holiday visits. Since children do not have the opportunity to be with the out-of-state noncustodial parent on a weekly or biweekly basis, additional time might be provided during winter, spring, and summer vacations. A provision also might be added to allow for visitation when the noncustodial parent is in the vicinity of the children. The following is an example of a liberal visitation schedule for an out-of-state noncustodial parent.] _________ shall have custody of the minor children of the parties, and __________ shall have reasonable rights of visitation. Such visitation shall include: (a) Alternate Thanksgiving holidays. (b) Two-thirds of each winter vacation of the children. (c) All of each spring vacation of the children. (d) Seven weeks in the summer. (e) Reasonable visitation on week nights and for entire weekends when the noncustodial parent is in the vicinity of the children's home. The visitation schedule was adopted in light of geographic distance between the parents. In the event that the parents live in such close proximity to each other that more frequent visitation is feasible, this schedule shall be modified. Pick-ups and drop-offs Pick-ups and drop-offs are to be from ____________'s residence and done on a timely basis. If ________ is going to be more than 30 minutes late, he [she] must advise _________ by telephone. If _________ is more than one hour late and has not called, then visitation will be considered canceled. ______ agrees to be particularly mindful of returning the children on time on school evenings. Future visitation--as children get older [Editor's note: This clause provides for minimum visitation rights to increase as the children get older.] Specific visitation rights set forth here are intended to be a minimum. They shall remain the same for the next two years. The parties shall thereafter agree to increased visitation rights for _____________ [noncustodial parent], subject to the best interests of the children. The parties agree to foster increased visitation. OR Nonspecific In light of the age and maturity of _______ [child], no specific times and places for visitation are set forth here. It is understood that visitation between _________ [child] and _____ [noncustodial parent] shall be at such times and places as ______ [child] and _________ [noncustodial parent] agree upon, subject to reasonable notice to __________ [custodial parent]. Failure to exercise visitation--nonwaiver The failure of ___ [noncustodial parent] to exercise in whole or in part ____ [her/his] right to spend time with the children as provided here shall not constitute a waiver of such rights in the future. Penalty for non-visitation In the event that __________ [noncustodial parent] fails to exercise scheduled visitation and alternate visitation was not agreed to by the parties, ___________ [noncustodial parent] shall pay _____ [custodial parent] $_____ [$50]. That amount shall be paid to compensate ____ [the custodial parent] for additional expenses incurred when caring for the child[ren] during that time period. Supervised visitation _____ shall have custody of the children, and _____ shall be able to visit with the children under supervision. Such visitation shall be for a period of ____ hours every ____ [specify time period]. The visitation shall be on the premises of and under the supervision of ____ [name of agency or individual supervising the visitation]. The person supervising the visitation may terminate a visitation period if he or she considers it necessary for the child's welfare. Other activities Children's birthday parties In alternate years, each parent shall have responsibility for organizing the children's birthday parties to which the children invite friends. [Editor's note: Odd- and even-numbered years might be allocated for each child.] Special family events Each parent shall allow the other parent to have the children with him or her for special family events, such as weddings, funerals, reunions, and major anniversaries and birthdays (e.g., a grandparent's 50th wedding anniversary or 50th birthday). The parent seeking to have the children with him or her for the special event shall provide as much advance notice as possible to the other parent. If such an event falls on a weekend when the children normally would not be with the parent who wishes to take them to the special event, the parents shall attempt to switch weekends. Special school holidays ____ [noncustodial parent] shall have the right to have the children with [him] [her] on half of those days in the school year when classes are not held because of teacher training workshops or teacher conferences with parents. _________ [the custodial parent] shall notify _________ [the noncustodial parent] when those days will occur and _________ [the noncustodial parent] shall give _________ [the custodial parent] advance notice of whether ___ [he] [she] will be with the children on those days. Other contact with child Right of first refusal to care for the child In the event the child cannot be taken care of by one parent for a period of five hours or more because of that parent's work schedule, out-of-town travel, or other reason, the other parent shall be given the opportunity to care for the child rather than having the child in the care of a sitter. Telephone contact Each parent shall allow the other parent reasonable telephone contact with the children, both by allowing the children to receive telephone calls and by allowing them to make telephone calls. The children shall be given privacy for their telephone calls with the other parent. [Editor's note: If telephone contact is a source of major contention, you may add the following language, which specifies times at which telephone contact is permitted.] The children shall be allowed to receive telephone calls from _____ [the noncustodial parent] between ___ [7 p.m.] and ___ [8 p.m.] on _______ [Mondays and Thursdays] and _____ [the custodial parent] shall not interfere with the receipt of those telephone calls. [Editor's note: If there is concern that one parent will harass the other parent with excessive telephone calls, the following language may be used.] __________ is permitted to contact the children by telephone no more than three times per week. Such calls shall be between the hours of ___ [7 p.m.] and ___ [8 p.m.], and no individual call may exceed ____[one-half hour]. Notification Copies of records and children's progress in school ______ [custodial parent] shall keep ______ [noncustodial parent] fully advised of the children's progress in school and social adjustments. ______ [custodial parent] shall promptly provide ______ [noncustodial parent] with copies of the children's report cards and other reports pertaining to the children's academic performance and conduct. _____ [custodial parent] shall notify _____ [noncustodial parent] of any planned teacher conferences, which both parents shall have the right to attend. Insofar as possible, _____ [custodial parent] shall attempt to schedule teacher conferences so that they are convenient to ________'s [noncustodial parent] schedule. Special events ___________ [custodial parent] shall notify ___________ [noncustodial parent] in advance of any school open houses, performances, athletic events, or other significant extracurricular events involving the children. Health problems Each parent shall promptly notify the other in the event that one of the children suffers an illness or accident requiring hospitalization or medical care of a physician or dentist. Each parent shall notify the other regarding results of the children's medical and dental examinations and supply copies of health records, if requested. Address and telephone numbers Each parent shall keep the other advised of his or her current addresses and telephone numbers for residence and work. In the event either parent travels out of town for a period of four days or more, the traveling parent shall provide the other parent with a telephone number at or through which he or she may be reached. On all trips of more than two days on which a parent is taking the children out of town, the parent taking the trip shall provide the other parent with an itinerary that includes addresses and telephone numbers at which the children can be reached. Positive relationships Each parent shall use reasonable efforts to promote a positive relationship between the children and the other parent. Neither parent shall undermine the children's relationship with the other parent, nor shall either party permit third persons to undermine the children's relationship with the other parent. Relocation Restricted In the event that _____ [custodial parent] wishes to move out of state [or more than ____ miles from ____] with the children, _____ [custodial parent] shall notify _____ [noncustodial parent] of the proposed move at least ___ [60] days before the proposed move. _____ [custodial parent] will not move out of state with the children without written permission from ____ [noncustodial parent] or permission of the court. [Editor's note: If one wishes to create further impediments to moving with the children, the following language also might be used: The parties agree that a proposed relocation of the children would be a substantial change in circumstances affecting the children and, thus, could be a basis for modification of custody.] Anticipated and allowed In the event that _____ [custodial parent] shall remove the children to a location more than 500 miles from the children's present residence, _____ [custodial parent] shall be responsible for arranging and paying for the transportation of the children for purposes of visitation with ___________ [noncustodial parent]. Travel shall be by air, and arrangements shall be made not less than ___ [30] days prior to the date of the children's anticipated departure from the residence of ______ [custodial parent]. _________ [custodial parent] shall provide to ________ [noncustodial parent] the paid airline ticket for the return of the children after the period of visitation. _________ [custodial parent] shall be responsible for placing the children upon the designated aircraft, and __________ [noncustodial parent] shall be responsible for picking the children up at the destination. [The child shall not be booked on flights that require a change of planes, and flights shall be nonstop whenever reasonably possible.] If more than one airport serves the area where ______ [noncustodial parent] is to pick up the children, ________ [noncustodial parent] shall have the right to designate the particular airport in that area. Right to move The parties recognize that it is important to the children's best interest that their parents be able to pursue their individual professional training and careers and that such pursuit may involve relocation by one or both parents from the ___________ area. The parties further recognize that it is important that the children have as frequent contact as is reasonably possible with their nonresidential parent. Accordingly, the parties have agreed on the complete freedom to relocate within the relocation area for professional reasons defined here, and upon the restrictions on their ability to relocate outside the relocation area, set forth below, and upon the alternative visitation schedule, set forth in paragraph ____ below, to be implemented in the event of a parent's relocation. Exhibit ______ is a list of states [or metropolitan areas] that are collectively referred to as the "relocation area." In selecting the states on this list, the parties have considered the location of desirable training programs, future practices, the availability of transportation to foster visitation, and the distance from_______. It is both parents' present desire to finish their training and to reside in the ______ region of the United States. However, both parties recognize the individual discretionary decision-making process involved in selecting either _______ training program and/or the location of a professional practice. In recognition of these factors, they agree that either parent is free to relocate anywhere in the relocation area to pursue his or her training or to enter practice. If either or both parents relocate within the relocation area, then visitation shall be as provided in paragraph ___, commencing two weeks after the relocation. [Editor's note: For a sample visitation order for parents who live in different states, see "An out-of-state noncustodial parent," earlier in this section.] Evaluation of the child Both parents agree that in _______ [month and year], the children and the parents shall be evaluated by __________ [name of mental health professional or agency] to determine the adjustment of the children and the need for any modification of visitation, custody, or conduct of the parents. The parents agree to cooperate fully in the evaluation and to consider seriously recommendations that come out of the evaluation. [Editor's note: Rather than have the evaluation conducted at a specific future time, the parents could agree to cooperate with an evaluation if requested to do so by the other parent.] Mediation In the event that the parents become engaged in irresolvable or intense conflict with regard to decisions affecting the minor children, the parties agree to submit such conflicts to a mediator, ____ [name of individual or agency]. In the event that the mediator shall thereafter fail to accept such appointment or, having accepted such appointment, shall resign or otherwise be unwilling or unable to continue as mediator, then a replacement mediator shall be appointed with the agreement of the parties or, failing agreement, by the court. Mediation shall take place and be subject to the following: (a) An issue or conflict between the parties shall not be submitted until the parties themselves have conferred and made all reasonable efforts to resolve it. (b) All decisions by the mediator shall be advisory and shall not be binding on the parties. Either party may disclose to the court the recommendation of the mediator in the event that such a matter is later submitted to the court for its determination. [Editor's note: Alternatively, the parties might agree not to disclose the mediator's recommendation to the court.] |